O Hypocrisy, know ye no bounds? That was the thought that flashed into my head when the University of Toronto (U of T) announced that it was suing Easy Group, a Toronto based tutorial service catering mainly to international students, for copyright infringement. According to a bulletin issued by the university, the institution–in concert with three of its professors (who actually hold the copyright on materials they have produced or compiled)–has filed a lawsuit against Easy Group (aka Easy EDU) alleging it routinely copies, without authorization, lecture slides, course syllabuses (or is it syllabi?), tests and exams and sells them in “course-packs” to students on its website in violation of the Copyright Act. Easy Group apparently also offers university course materials from classes given at other Canadian universities as well, including the University of Waterloo, York, McGill, UBC, and the University of Alberta. U of T is seeking damages and disgorgement of profits or statutory damages in lieu, as well as punitive and exemplary damages as a result of Easy Groups “wilful and malicious” disregard for the university’s and the professor’s exclusive economic and moral rights, return of the copyright infringing materials and a court-issued injunction to stop future infringement.
Both The Varsity and Globe and Mail have reported on the case, largely echoing the U of T statement. What neither mentioned was the irony, one might say hypocrisy, of a major Canadian post-secondary institution suing an educational tutorial service for copyright infringement when U of T, along with most other Canadian post-secondary institutions, have been using, without authorization, educational materials—books, articles, etc—for more than a decade based on the argument that use of such materials for educational purposes is an allowed fair dealing exception under the Copyright Act (subject to certain limitations). Education was added as an exception when the Copyright Act was “updated” in 2012. Most universities promptly used the exception as the pretext to cease licensing materials from Access Copyright, the collective representing writers and publishers in Canada. Until then, licensing had provided a means for universities to copy specified amounts of material held in Access Copyright’s repertoire, by paying a set amount per student per year. Where the amount could not be agreed by negotiation, the Copyright Board of Canada was called on to review evidence regarding the amount of copying taking place and set a tariff that would be applied to both the provider (Access Copyright) and the users (universities).
When York University objected to the tariff fixed by the Copyright Board of Canada and refused to pay it, the stage was set for years of expensive litigation. Access Copyright won round one at the Federal Court. York appealed and won a partial victory at the Federal Court of Appeal (FCA), although its claim of fair dealing was not upheld. The FCA ruled that the Copyright Board’s tariff was not binding on York. Both sides then appealed to the Supreme Court and last summer the Court upheld the FCA’s decision on the non-binding nature of the Copyright Board’s tariff, effectively gutting Canada’s collective licensing system. The legal process has taken almost a decade. Meanwhile Canada’s writers and educational publishing sector has been deprived of approximately $200 million in revenues, with the inevitable result that educational publishing in Canada is on life support. Have the “savings” been passed on to students? Dream on.
The universities routinely help themselves, without authorization and without payment, to material published for the educational market to compile course-packs—which they sell to students—arguing that they are exercising on behalf of students their right to access materials under the rubric of fair dealing for private study and educational purposes. The fact that the universities and their professors claim to be exercising the right on behalf of individual students provides the pretext to copy large amounts of materials, well in excess of reasonable guidelines. While Access used to license one chapter in a book, or one article in a publication, now the universities have unilaterally decided that such use falls under fair dealing. Not only that, but different elements of a book or publication are often used by different teachers for different courses, with the result that the entire work, or most of it, is being exploited without any licence permitting the use. The fact that U of T is now suing an educational tutoring service, admittedly one that is operated for commercial gain, for doing essentially the same thing, is ironic. It is even possible that some of the course-packs that Easy Group is accused of infringing contain some content from Access Copyright’s repertoire that the universities have decided they can use without authorization.
One wonders whether Easy Group could make the argument that it was exercising the fair dealing rights of its clients, who are students, in much the same way that the university sector claims that it is using unlicensed materials for the benefit of students, not itself. That would probably be a stretch and we are not likely to find out whether such a defence would prevail, since a tutorial services, even one as apparently successful as Easy Group, is not likely to mount a court challenge in the same way that the educational sector engaged in a well-funded tooth and nail legal fight for over a decade with Canada’s writers and publishers. More likely is they will strike some kind of agreement with U of T to cease using these materials. If they do not defend the case, they risk a summary judgment and a finding of what could be crippling statutory damages.
Easy Group was founded in 2014 by U of T graduate Jacky Zhang. It’s self-proclaimed guiding principles are “integrity, inclusivity and innovation”. It offers five services; tutoring and cultural integration, career counselling, college counselling, student services (assistance with housing, transportation, visa applications, tax regulations etc.) and reference services for educational resources. It appears to cater largely to international students. According to its website, which is in English and Chinese, it has 300,000 clients and has offices in Canada and China. Its Canadian office is on Bloor Street adjacent to U of T’s main campus. In other words, it is not some shadowy web presence. It will have to deal with these accusations, which in the past it has apparently ignored. Its recalcitrance helps explain the reason for the university going to court.
I am not defending Easy Group’s practices, but one cannot help but wonder if the U of T administration feels even the least bit uncomfortable coming down hard on a student tutorial service for infringing its copyrights when it has been justifying its own unauthorized use of the copyright- protected works of others for the past decade by hiding behind the education fair dealing exception. U of T claims to be concerned about the potential impact on its students of using these unauthorized materials, even pointing to a student that was suspended for violation of the university’s academic integrity policies. But universities in Canada routinely serve up unauthorized copies of materials to their students in course-packs containing materials lifted from educational publications.
The objective of higher education is to help students learn and succeed in their studies. To do this we need professors who create compelling content and teach it well, we need institutions that provide the structure and framework to deliver that knowledge, and we need creators of knowledge—writers, publishers, researchers—to produce the teaching materials. In other words, we need to rely on the full ecosystem that disseminates and advances learning—damage one part and you damage it all. In its Statement of Claim, U of T makes reference to Easy Group’s “disregard for the intellectual property rights of others”, and the “serious and irreparable harm and damage” suffered by the university and its professors from these infringements. But surely what is sauce for the goose is sauce for the gander. When it came time to respect the intellectual property rights of writers and publishers, U of T and other universities, abetted by faulty legislation, have been more than willing to take a free ride on creators of educational content by invoking a flawed fair dealing exception that has driven a spike through the previously balanced copyright system. If any group has suffered “serious and irreparable harm and damage”, it is Canada’s writers and educational publishers. The smell of U of T’s hypocrisy permeates the air.
It is time for Parliament to rectify its error and close the education fair dealing loophole to restore some balance into the market for educational materials. The solution is quite straightforward; amend the Act so that educational fair dealing does not apply to educational institutions where a work is commercially available, as was recommended by the Standing Committee on Heritage in 2019. There were cryptic references in the recent Budget document to the effect that the government will work to ensure a “ensure a sustainable education publishing industry including fair remuneration for creators and copyright holders…” through the Copyright Act.
Maybe that means this major breach in the system will be closed by amending the Copyright Act. But when? In the meantime, the post-secondary educational sector is using that same law to defend its interests against alleged infringement. U of T no doubt does not see this as hypocrisy; why shouldn’t it defend its rights and the rights of its professors? But that decision would have been easier to understand if the university sector generally had not fought against writers and publishers—creators who share the same goals as they do—by refusing to license and pay for educational materials they use in the daily instruction of their student body.
© Hugh Stephens, 2022. All Rights Reserved